Parents are having a hard time understanding Supreme Court Justice Antonin Scalia’s recent opinion. Scalia, writing for the majority, gave the High Court’s reasoning for upholding a federal appeals court decision, which threw out a California ban on the sale or rental of violent video games to minors.

Scalia and his wife Maureen have nine children and 28 grandchildren. What was he thinking?

Perhaps one explanation is the fact that the Supreme Court justice left most of the child-rearing up to his wife. When it came to attending the children’s soccer games or piano recitals, Scalia told Lesley Stahl in a 60 Minutes interview in 2008, “You know, my parents never did it for me. I didn’t take it personally… He has his work. I got my softball game. Of course, [Maureen] was very loyal. She went to all the games.”

Referring to the Stahl interview, Jamie Heller noted on the Wall Street blog, The Juggle, “perhaps the more compelling point here is the clear division of labor that seemed to exist between these spouses. Nino had the workplace career. Maureen raised the children.”

So does this excuse Justice Scalia’s taking the position he did in siding with the majority in Brown v. Entertainment Merchants Association? Rebecca Burgoyne, legislative analyst for the California Family Council, says “The Supreme Court has basically done an end-run against parental authority and said that children have the right to have access to these video games, despite what their parents may think or say.”

As Burgoyne told OneNewsNow, the danger posed to children by excessively violent video games is the fact that children are simulating violent behaviors, such as shooting people—or worse—and “rehearsing these behaviors over and over again.”

In his opinion, Justice Scalia wrote, “No doubt a state possesses legitimate power to protect children from harm. But that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Agreed. That type of restriction is already in place in our government controlled schools where intelligent design and creation science are dismissed out of hand. But the issue here is not the “ideas” that children are being exposed to, but the “behaviors” that they are imitating and acting out in a simulated environment.

Some of those behaviors were described by Justice Alito in his concurring opinion. “In some of these games,” he wrote, “the violence is astounding. Victims by the dozens are killed with every imaginable implement…dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown.”

Justice Scalia, however, compared the video simulation of such horrific and gory acts of violence to the violence children and teenagers are exposed to in literature such as Grimm’s Fairy Tales or Homer’s Odyssey or even William Golding’s Lord of the Flies. “Grimm’s Fairy Tales, for example are grim indeed,” he opined.

Although he concurred with the majority, arguing that the California law should be struck down because it was too vague, Judge Alito did caution, “The Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before.”

And that is precisely what the “vague” California law was intended to take into account. The author of the bill is state senator Leland Yee, a 61 year old Democrat from San Francisco who is also a child psychologist. As Joan Biskupic reported in U.S.A Today, Sen. Yee’s concern in crafting the bill is the interactive component of video games. This interactivity makes them much more dangerous in their effects on gamers compared to the effects a violent movie might have on a viewer or a violence filled book has on a reader. The child psychologist claims that participating in video games that simulate killing or maiming of human beings is harmful to the psyches of young players and can even lead to violence.

Yee also points out that parents who want to screen violent games have difficulty doing so because the scenes of slaughter and brutal violence may only come after hours of strategic play. “No parent can just play the game and know everything in it.”

According to Biskupic, the Brown v. Entertainment Merchants Association case generated a large number of friend of the court briefs—26 of 30 opposed the California law. Included among these was the U.S.A Today,. The foundation argued that violence has always been part of children’s literature, and fairy tales are replete with stories in which the witch is burned alive or a grandmother devoured by a wolf.

But such arguments again miss the point. Children recognize that fairy tales are fantasy—they are stories of imaginary characters, and that is what makes them frightening, but ultimately safe.

Video game simulations, on the other hand, are appealing to young gamers precisely because they allow them to participate in a “virtual reality” in which they become one with the characters who act out the fantasy. The avowed aim of game designers is to blur the line between fantasy and reality in order to make their games more compelling and captivating.

The Supreme Court’s decision flies in the face of both common sense and good sense. The Court even ignored its own past decisions that had bearing on this case, such as the court’s 1968 Ginsberg v. New York decision in which the court upheld a law that regulated content that was deemed harmful to children because it was obscene.

Ultimately the good sense and the constitutional sense in this case came from the two dissenting Justices—an unlikely pair—Justice Thomas, known as a court “conservative” and Justice Breyer, known as a “liberal.”

As Mark Walsh noted in Education Week, “Justice Thomas cited the history of parental control of children from the early days of the Republic and said, ‘The freedom of speech, as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.’”

Justice Breyer said that the California law “imposes no more than a modest restriction on expression. This case is ultimately less about censorship than it is about education.” “Sometimes,” Breyer added, “children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.”

By their decision the Supreme Court has made sure that seven-year-olds are now free to make the choice themselves whether to purchase games like Grand Theft Auto: Vice City, regardless of what their parents may say.

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About Karen Gushta

Dr. Karen Gushta is research coordinator at Truth in Action Ministries, author of The War on Children, and co-author of Ten Truths About Socialism. As a career educator, Dr. Gushta has taught from kindergarten to graduate teacher education in both public and Christian schools in America and overseas. She has a Ph.D. in Philosophy of Education and Masters degrees in Elementary Education and in Christianity and Culture.

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